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No New Civil Partnerships

Under this option, no new civil partnerships could be entered into in Scotland, from a given date in the future. Existing civil partners could stay in their civil partnership if they so wished, and these civil partnerships would continue to be recognised in law. Civil partnerships formed in England and Wales and Northern Ireland would continue to be treated as civil partnerships in Scotland and same sex relationships other than marriages registered overseas would continue to be treated as civil partnerships in Scotland, provided certain criteria are met. Opposite sex and same sex couples would continue to be able to get married, if they wished.

If this option were taken forward, provision would need to be made in both primary legislation (a Bill in the Scottish Parliament) and secondary legislation (in the form of regulations).

The consultation asked two questions about the option that would result in no new civil partnerships in Scotland.

The case for no new civil partnerships

The consultation paper set out the following arguments in favour of the no new civil partnerships option:

It reduces complexity in that the option for couples in the future - whether opposite sex or same sex - would be to get married.

It removes a separate status for same sex couples, although the status would remain for the foreseeable future, since existing civil partners could remain in their civil partnership and civil partnerships from outwith Scotland would continue to be recognised.

It is more likely that a couple would have their marriage recognised in foreign countries as opposed to their civil partnership, as the recognition of marriage is well-established worldwide, and the rights and responsibilities across the world more consistent.

Question 3: Please provide any additional arguments you wish to make in favour of the option of no new civil partnerships being entered into from a date in the future.

A total of 109 respondents made a comment [6], a number of which focused primarily on agreement or disagreement with there being no new civil partnerships. Issues raised by those who disagreed with this option are set out under Question 4 below.

Those who agreed with there being no new civil partnerships generally appeared to come from one of two broad standpoints. One perspective was that civil partnerships became obsolete with the introduction of same sex marriage and a line should have been drawn under them at that point. The alternative perspective was that there should never have been, and still should not be, the type of legal recognition of same sex relationships offered by civil partnerships.

Further comments made by those coming from the former perspective included that:

Civil partnerships were introduced at a time when same sex couples could not get married. Although they may have represented considerable progress at the time - and particularly at a point when same sex marriage was not widely seen as a real possibility - society has moved on. They now represent little more than memory of the path Scotland has taken to marriage equality but since they are rooted in, and to a certain extent symbolic of, inequality, their time has passed and they are redundant.

Although not necessarily a preferred option, there was also a view that if opposite sex civil partnerships are not introduced, then drawing a line under same sex civil partnerships may minimise the unequal treatment of opposite and same sex couples. However, it was noted that the Scottish Government has intimated that same sex civil partnerships registered outwith Scotland would continue to be recognised and that this would mean that a degree of inequality would remain built in to the Scottish system.

Retaining civil partnership, including if opening it up to opposite sex couples, assumes that a genuine choice is on offer. However, when the law offers a choice it should have consequence, but in this case there is little or no difference between the rights provided by marriage and the rights provided by civil partnership. Without choice of substance, it becomes a choice merely of terminology.

Current levels of demand suggest that marriage is the preferred option amongst same sex couples. Given low levels of demand, there may be a case for simplifying the system by removing an option for which there is limited take up.

Nevertheless, and in line with the option as proposed, it would be critical for those currently in civil partnerships and wishing to remain in them to be entitled to do so.

In line with this latter point, it was suggested that, contrary to the consultation paper's assertion, having no new civil partnerships may not reduce overall complexity since other parts of Scotland's legal or administrative systems would need to continue to provide for existing civil partnerships and for civil partnerships registered outwith Scotland. It was also suggested that any benefits to the registration system are likely to be marginal and that it appears to have worked well for the last 10 years.

Other respondents favoured there being no new civil partnerships because they do not and/or never have agreed with offering specific legal recognition to same sex couples. These respondents sometimes connected the introduction of civil partnership with the subsequent introduction of same sex marriage and also made their opposition to that institution clear. Those providing further explanation tended to the view that marriage is between a man and a woman and that any alternative options, including both same sex civil partnership and same sex marriage, are not in the best interest of society and of children in particular. These views tended to be expressed more fully and are explored in greater depth at Question 5.

The case against no new civil partnerships

The consultation paper set out the following arguments against the no new same sex civil partnerships option:

It would remove an option currently available to same sex couples and for which the Government expects that there will be a continuing, though modest, demand.

Civil partnership allows same sex couples who believe marriage to be a union meant for opposite sex couples to gain rights and recognition of their relationship without getting married.

Although there would be no obligation on existing civil partners to change their relationship into marriage, they might perhaps feel some pressure to do so as civil partnership would increasingly become a legacy status.

The Government's consultation on the registration of civil partnership and same sex marriage showed support for retaining civil partnership.

Question 4: Please provide any additional arguments you wish to make against the option of no new civil partnerships being entered into from a date in the future.

A total of 162 respondents made a comment [7], with a number of respondents re-stating or noting agreement with one or more of the four arguments against the no new civil partnerships option presented in the consultation paper.

Allowing choice

Those commenting at Question 4 tended to focus on the issue of choice and, as at other questions, their arguments were sometimes linked to the possible introduction of opposite sex civil partnership. It was suggested that it is incumbent upon the Scottish Government to take forward an option that upholds the principles of equality, dignity, tolerance and respect and allowing people choice within a fair and equal society should be a key consideration when deciding on the preferred option.

Points made in support of allowing same sex couples the continued choice of civil partnership included that same sex civil partnerships have played, and continue to play, a very important role for some people. Some of these respondents were amongst those who suggested there is likely to be a continuing if potentially modest demand for civil partnerships. Others suggested that a 'sunset clause' for civil partnerships would be premature until demand for them has been tested against the backdrop of marriage for all. It was also noted that other countries that introduced civil partnerships before making marriage available to same sex couples have seen a small but continuing demand for civil partnerships.

Those highlighting these issues included individual respondents who are in civil partnerships, and who have not - and would not - choose to enter into marriage. Respondents identified a number of reasons why same sex couples may prefer civil partnership to marriage. Overall, the issues raised tended to be similar to those made by respondents supporting the introduction of opposite sex civil partnership (and as discussed at Question 5 below). A slightly different perspective was that members of the LGBTI community may believe that religious bodies have actively discriminated against them in the past and/or continue to do so. It was suggested that, if an LGBTI person feels this way, they are unlikely to want to enter into an institution - namely marriage - which is closely connected with, and has been promoted by, those religious bodies.

Other possible reasons given for same sex couples preferring a civil partnership included that:

They may object to the institution of marriage on other points of principle. For example, they may view marriage as a patriarchal institution.

They may believe marriage to be a union meant for opposite sex couples, including because of their own religious beliefs.

Civil partnerships can play an important role for LGBTI people of faith whose religious institutions do not recognise same sex marriage. They may be disproportionately affected by any repeal of civil partnership legislation.

Existing civil partnerships

Many of the other comments made focused on the possible impact of allowing no new civil partnerships on those already in existence. Issues and concerns raised included:

No new civil partnerships could undermine the legitimacy and status of those that already exist. People may feel their civil partnership is increasingly seen as less important, less accepted, or less understood by service providers and by wider society. There could be particular problems around lack of understanding about pension rights.

Irrespective of any assurances given by Government, this option could foster a feeling of insecurity amongst those already in civil partnerships, including by making people feel pressured to convert their civil partnerships into marriages.

Other issues highlighted by respondents included:

From a practical perspective, the continuation of existing civil partnerships would still need to be taken into account. For example, all forms that require disclosure of marital or civil partnered status would need to continue including the civil partnership option. Any opportunities to simplify processes as a result of there being no new civil partnerships would not be realised for some time.

In the long term, abolishing civil partnerships would involve substantial changes to both primary and secondary legislation, thereby consuming valuable resources and parliamentary time with no discernible benefit.

If same sex civil partnerships registered in England and Wales continue to be recognised in Scotland, and because registration of civil partnerships continues to be available in England and Wales, the effect would be to export civil partnership registration across the border.